The Volokh Conspiracy
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Two recent federal district court decisions add to the Trump Administration's already extensive losing streak in cases where it has tried to force "sanctuary cities" to help enforce federal immigration policy. The cases are notable because they are the first to address the revised fiscal year 2018 version of a Justice Department policy seeking to force recipients of federal law enforcement grants to help the federal government deport undocumented immigrants. The new policy has much the same constitutional flaws as its 2017 predecessor.
In 2017, then-Attorney General Jeff Sessions sought to cut Byrne Memorial Justice Assistance Grant funds to state and local governments that fail to meet three conditions:
1. Prove compliance with 8 USC Section 1373, a federal law that bars cities or states from restricting communications by their employees with the Department of Homeland Security and Immigration and Customs Enforcement (ICE) about the immigration or citizenship status of individuals targeted by these federal agencies.
2. Allow DHS officials access into any detention facility to determine the immigration status of any aliens being held.
3. Give DHS 48 hours' notice before a jail or prison releases a person when DHS has sent over a detention request, so the feds can arrange to take custody of the alien after he or she is released.
Federal judges repeatedly ruled that these conditions are unconstitutional because, among other things, they were never authorized by Congress. For fiscal year, 2018, the Justice Department nonetheless sought to impose slightly revised versions of the same three conditions, plus two new ones, summarized in today's ruling by Judge William Orrick of the US District Court for the Northern District of California, in a case brought against the administration by the City and County of San Francisco, and the state of California:
The nondisclosure condition provides that:
Consistent with the purposes and objectives of federal law enforcement statutes and federal criminal law (including 8 U.S.C. 1324 and 18 U.S.C. chs. 1, 49, 227), no public disclosure may be made of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12…
The information condition, which the DOJ disputes is a condition in the first instance, requires award recipients to collect certain information from sub-grant recipients…. For example, California would not be able to authorize a sub-grant "unless it first obtains from the proposed subrecipient responses to the questions identified in the program solicitation as 'Information regarding Communication with the Department of Homeland Security (DHS) and/or Immigration and Customs Enforcement (ICE)." Id. Those questions include whether the jurisdiction has "any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or ICE," and require applicants to provide a copy of the law or policy, describe the practices, and explain how it complies with Section 1373….
Judge Orrick's opinion, issued today, holds that these two new conditions have much the same constitutional flaws as the three old ones. Quite simply, they were never authorized by Congress, and only Congress has the power to authorize federal grants to state and local governments and impose conditions on recipients. In addition, today's ruling reiterates his October 2018 ruling striking down the the three fiscal year 2017 conditions, which the Justice Department tried to carry over to 2018.
He also reiterated the part of that ruling striking down Section 1373 as independently unconstitutional because it violates Tenth Amendment ban on federal "commandeering" of state governments to help enforce federal law. This part of the October 2018 ruling is similar to the decisions of other federal judges who have ruled on the same policy, in cases filed by the cities of Chicago and Philadelphia. Judge Orrick followed these and other federal court decisions in ruling that Section 1373 is unconstitutional under the Supreme Court's recent decision in Murphy v. NCAA, which invalidated a federal law barring states from "authorizing" sports gambling under state law. I explained in detail how the Murphy decision undercuts Section 1373 here, here, and here.
As Judge Orrick notes, a similar decision striking down the two new conditions was recently issued by the District court for the Central District of California, in a case brought by the City of Los Angeles.
The administration's persistent violations of the Constitution in this field are a testament to their zeal in targeting sanctuary cities. But, so far at least, courts have virtually uniformly ruled against them, in decisions written by both Republican and Democratic-appointed judges. While the specific grant programs at issue in most of these cases are not all that significant, the sanctuary litigation has important broader implications for federalism and separation of powers. If Trump prevails, the executive would have the power to circumvent congressional control over federal funds and invent new grant conditions to pressure state and local governments on a wide range of issues. Conservatives who applaud Trump's attacks on sanctuary cities may not be so happy if a liberal Democratic administration gets away with using similar tactics against "red" jurisdictions in the future.